HOA: Consult lawyer before changing CC&Rs

Q: Our neighborhood has CC&Rs and a review committee. Some of the things in the CC&Rs seem kind of discriminatory or snobby to me, so I am on a committee to possibly drop things that members agree to. Do we need an attorney to do that? --B.F., La Jolla

A: Your association CC&Rs are an important and complicated document, and the Davis-Stirling Common Interest Development Act has much to say about what they should or should not contain. Having a lawyer involved early in the process may save your committee wasted effort. From time to time a committee will present me with a draft upon which they have worked many dozens of hours, only to discover from me that much of their suggested changes would conflict with the law. I understand attorneys are expensive, but the expense is warranted when it would prevent hours of wasted effort. Perhaps have an initial meeting with the attorney, and discuss what you would like to add or delete. Once you have a better idea of where the flexibility lies, your committee can be more effective.

“No Signs of any kind … other than signs … advertising the property for sale shall be erected, posted, pasted, painted or displayed upon any building or other structures thereon without the prior written approval of the Association.”

The law firms we retained never mentioned the fact that this CC&R might not be legal in regards to a political sign.

A new owner has threatened our HOA with a lawsuit over this sign restriction. It is my understanding that when a new owner buys the home and receives a copy of the current CC& Rs. He or she has agreed to the CC&R's with their purchase, and has no grounds to challenge the CC& R's. Are our CC&R's legal? --R.J, Hemet

A: I am assuming from reviewing your HOA’s website that your association is a planned development. This matters because the issue is much narrower with condominiums, where the separate interest is also much narrower. Civil Code 4710 protects non-commercial signs in a separate interest, subject to some important limitations -- signs cannot be larger than 9 square feet, and banners not larger than 15. Per the statute, signs cannot be made of “lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.” So, for example, a homeowner could not paint a sign onto their house or garage. If a sign is placed onto a framework (such as mounted on a roof), I think an association could reasonably restrict the framework (but not the sign).

With condominiums, the separate interest is normally much narrower in scope, and so condominium owners normally have fewer options in this regard – meaning much less use of signs.

Also, Civil Code 712 and 713 (outside of the CID Act) protect the right of homeowners to post reasonable “for sale” signs on their property.

If your association’s governing documents contain invalid restrictions, it’s a good idea to amend and remove them to avoid future confusion and disputes with owners.

Kelly G. Richardson CCAL is Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice. Send questions to KRichardson@RHOpc.com. Past columns at www.HOAHomefront.com. All rights reserved®.